Wednesday, 23 April 2014

Should the EU ratify the Istanbul Convention on violence against women?

Steve Peers

For many years, discussion as regards the EU and human rights has focussed on the growing role of the EU Charter of Fundamental Rights and the EU’s planned accession to the European Convention on Human Rights. This is understandable, given the importance of these developments. However, the EU’s relationship with other international human rights instruments is also worthy of further examination.

The EU is not able to sign up to older UN human rights treaties – such as the two Covenants and the Conventions relating to sex discrimination, race discrimination and migrant workers – because ratification of these instruments is only open to States. Similarly, only States can ratify ILO Conventions, although the EU sometimes coordinates its Member States’ position as regards ILO measures (see the discussion of the proposal to coordinate positions regarding new ILO forced labour measures).

However, more recent international human rights treaties do provide for possible accession by the EU, and indeed the Union has signed up to the UN Convention on the Rights of Disabled Persons (see the recent Z judgment of the CJEU).
With the imminent entry into force of the Council of Europe’s Istanbul Convention on violence against women (which will come into force on 1 August 2014, after the deposit of the tenth ratification on April 22nd), the question now arises whether the EU should sign up to another human rights treaty. This post sets out the reasons why the EU should ratify the Convention at the earliest opportunity.

EU competence to ratify the Istanbul Convention

The EU is certainty competent to ratify the Istanbul Convention, if it wishes to do so. First of all, the Convention expressly provides (in Article 75(1)) for ratification by the EU, without setting any special condition in this respect.

Secondly, as a matter of internal EU law, the EU can sign up to any treaties which are (inter alia) ‘likely to affect common rules or alter their scope’ (Article 216 TFEU). Although EU law has not regulated the key substantive criminal law issues dealt with in the Istanbul Convention, the Convention does not limit itself to establishing rules concerning criminal liability, but also addresses a number of other issues. In particular, there are EU law measures concerning the Convention’s rules on: crime victims’ rights, cross-border application of protection orders (both civil and criminal), other forms of cross-border cooperation, and immigration and asylum issues (see the detailed list in the Annex).

It must be pointed out that if the EU ratifies the Istanbul Convention, it would not be replacing its Member States, but ratifying the Convention alongside them. In other words, the Convention would be another ‘mixed agreement’ which both the EU and its Member States have ratified, like the UN Disabilities Convention, (in future) the ECHR and many other treaties. The EU would not be legally obliged to adopt any more legislation affecting the issue of violence against women than it already has done. While I have argued before that there are good reasons (and legal powers) for the EU to adopt legislation establishing substantive criminal law rules in this field, this is a separate question from whether the EU ought to ratify the Convention.

Reasons why the EU should ratify the Istanbul Convention

First of all, the EU’s ratification of the Convention would provide encouragement to its Member States, as well as non-Member States of the EU, to ratify the Convention. It would increase the prominence of the Convention worldwide, perhaps inspiring changes to national law and regional treaty-making outside Europe.

Secondly, ratification would, as regards this Convention at least, address the argument that the EU has ‘double standards’ as regards human rights, insisting that would-be EU Member States and associated countries should uphold human rights standards that the EU does not apply itself. While the double standards argument can be answered as regards human rights treaties which the EU cannot ratify, it cannot so easily be rebutted as regards treaties which it can. If the EU is perfectly able to ratify the Istanbul Convention, but chooses not to, what moral authority does it have to ask non-Member States to do so?

Ratification of the Convention would enhance its role in EU law, because it could more easily be used as a parameter for the interpretation and validity of EU legislation (such as the legislation listed in the Annex, plus any future relevant measures). It would also mean that the Convention would already bind those EU Member States which had not yet ratified it, as regards those provisions within EU competence.

Furthermore, since the CJEU would have jurisdiction to interpret those provisions of the Convention which fall within the scope of EU competence, this would promote a uniform interpretation of those provisions within the EU.

Next, the relevant provisions of the Convention would be more enforceable if they were enshrined in to EU law. While the CJEU ruled in the Z case that the UN Disabilities Convention did not have direct effect, and might rule the same as regards the Istanbul Convention, at least that Convention would have ‘indirect effect’ (ie the obligation to interpret EU law consistently with it), and the Commission could bring infringement actions against Member States which had not applied the Convention correctly, as regards issues within the scope of EU competence. Ensuring the enforceability of the Convention is all the more important since it does not provide for an individual complaint system.

Finally, ratification would subject the EU to outside monitoring as regards this issue, and avoid the awkward scenario of its Member States being monitored as regards issues within EU competence – meaning that the Convention’s monitoring body would in effect to some extent be monitoring whether EU Member States were complying with EU law.

[Update: the Commission proposed that the EU should sign and conclude the Convention in March 2016. See discussion here.]